There is recognition in the Senate of the need for reform in the public records area and the bill is likely to receive a favorable senate vote next week in substantially the form now proposed. However, the issue is still very much in flux — the House has proposed a rather different draft and the final product will combine elements of both and possibly additional ideas.

One issue that I am interested in feedback on is the issue of attorneys fees: The Senate draft, but not the House draft, specifies that if a person or news organization has requested public records and has to sue to get them, and a court rules in their favor, then they can recover attorneys fees. The reverse is not, however, currently proposed — in other words if a person or a news organization brings a town into court on a frivolous issue and loses, he does not have to pay the town’s cost of defending the law suit. Whether the losing plaintiff was a major news organization or an aggrieved citizen, those legal bills will be borne by all the taxpayers of the community. Would it be reasonable to have a reciprocal exposure to attorneys fees?

I’d appreciate your thoughts on that particular wrinkle and would also really appreciate hearing any personal experiences you have had with this issue generally. We’ll be voting on Thursday, February 4.

Senate Ways and Means Fact Sheet

Public Access Officers

The bill requires state agencies and municipalities to designate at least one public records access officer.

Time to Comply with a Public Records Request

The bill requires a municipality or state agency to complete a request for public records within 15 days. If 15 days is not feasible, the municipality or state agency is authorized to extend the timeline by an additional 15 days, but the public access officer is required to issue a written response within 10 days of receiving the request and inform the requestor of the status of the request.

Should the request reasonably take longer than 30 days, the Supervisor of Records is able to grant a single, 30 day extension, ensuring all requests are complied with within 60 days total. The one exception to the 60 day total would be for requests clearly designed to harass, and in such a case the Supervisor could grant additional time.

Allowable Fees

The bill allows a records access officer to charge a reasonable fee for a public record, but establishes parameters for those fees. The bill requires state agencies to provide 4 free hours of employee time and municipalities to provide 2 free hours of employee time. Records requests that require more time may incur a fee equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill to comply, but not more than $25 per hour.

The bill limits charges for time spent redacting or segregating unless redaction or segregation is required by law. If a municipality or agency needs to make redactions not required by law, or if a municipality needs to charge over $25 an hour, the municipality or agency must seek approval of the Supervisor of Records.

The bill authorizes a records access officer to waive or reduce the amount of any fee if the requested record is in the public interest and is not primarily in the commercial interest of the requestor.

Attorney Fees

The bill requires attorney fees to be awarded, except in certain defined situations.

Enforcement

The bill prohibits a records access officer from charging a fee if the agency or municipality does not provide the record within 15 days of the request or does not response to the requestor within 10 days. It also requires punitive damages up to $5,000 if the court determines the government entity did not act in good faith.

Modernization of Public Records

The bill requires state entities and encourages municipalities to post online many common public record documents. It also helps municipalities develop informational technology to foster best practices and facilitate compliance with public records requests.

Senate Actions on Thursday, February 4, 2016:

Here’s the short after-action report: After deliberation, and against some of the advice below, I did introduce an amendment to soften the attorneys fees provision in the bill. I feel that attorneys fees can be a very big club — disproportionate to the actual issues at stake. I feel that they should be awarded only to punish willful bad behavior.

I spent the day negotiating unsuccessfully on the point. Initially, I proposed that municipalities should not be punished with attorneys fees unless they acted in faith and that there should be a symmetric exposure for people who bring law suits against municipalities in bad faith. My primary concern was with the first issue — not punishing municipalities and agencies unless they are acting in bad faith: I signaled willingness to drop the provision that expose bad faith plaintiffs to attorneys fee awards.

However, advocates for the bill reacted negatively even to the simple proposal to make bad faith a predicate for attorney fee awards against municipalities. They suggested in an email campaign that bad faith is impossible to prove and that this provision would “gut the bill.” I respectfully disagree — I think that a municipality that responds in a dilatory way to a legitimate public records request and ends up in court would be running a serious risk of being found in bad faith and facing an attorneys fee award. Judges are pretty good at recognizing dilatory tactics — they spend much of their day dealing with dilatory civil litigants. I think the approach I offered would be fairer. While most states do allow attorneys fees in public records cases, my staff’s best read of available survey data is that only a minority of states make them mandatory without a showing of bad faith.

Ultimately, the bill was sent to the next step without changes in the attorneys fees provisions. The next step for the bill is a conference committee with the House which has approved a very different bill. I am confident that the final bill will be more balanced. In fact, part of the reason that advocates were strongly opposed to my amendments is that they wanted to enter the conference process with a stronger bargaining position. I understand that strategy and did vote in support of the final bill despite my sense that it overreaches in some respects.